Title 18, United States Code, Section 1521 prohibits the knowing filing of false liens or encumbrances against the property of an individual described in 18 U.S.C. Section 1114 [an officer or employee of the United States], "on account of the performance of official duties by that individual." In U.S. v. Pate, the 11th Circuit recently held that the statute did not apply to liens filed against individuals listed in Section 1114 if the individuals were no longer in office when the liens were filed. This was an en banc decision. Appellant, a tax protester, had knowingly filed liens against the respective properties of a former IRS Commissioner and a former Secretary of the Treasury. Pate conceded that he filed the liens on account of the officials' performance of their official duties, but contended that the statute only applied to officials still serving when the liens were filed. A majority of the 11th Circuit judges agreed.
Category: Judicial Opinions
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It is a truism that federal circuit courts very seldom entertain ineffective assistance of counsel claims on appeal, because the record below is usually inadequately developed. Criminal defendants typically must wait to raise such claims in a habeas petition. But last week the Sixth Circuit released appellant Faraday Hosseinipour pending her appeal, holding that she had already raised a substantial question regarding her trial counsel's competence. Trial counsel was her brother-in-law who had almost no federal criminal experience. More to come on this case in the coming days. Here is the 6th Circuit Order on Motions for Release Pending Appeal.
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Here is Judge Chutkan's gag order issued earlier today in United States v. Trump in the U.S. District Court for the District of Columbia: 10-17-23 Trump Gag Order in DC Case.
By way of comparison, in August 2023, SDNY District Judge Lewis Kaplan granted the government's motion to revoke Defendant Sam Bankman-Fried's bond and detain him. Although Judge Kaplan's Order itself was only a one-pager he accepted the government's argument which was laid out in detail in a letter brief. Here is U.S. v. Sam Bankman-Fried – Government's Letter Brief in Support of Revoking Defendant's Bond.
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Congratulations to Dr. Lesly Pompy, acquitted on all counts (illegal distribution and health care fraud) on January 4, 2023, in the Eastern District of Michigan. Kudos as well to his outstanding team of defense lawyers, Ronald Chapman II (Chapman Law Group), Joe Richotte (Butzel Long), and George Donnini (Butzel Long). Here is a recap from Ron's Federal Defense Blog. Attached below is Defendant's Proposed Jury Instruction. The proposed illegal distribution charge should serve as a model for other defense attorneys practicing in this area.
U.S. v. Lesly Pompy M.D. Defendant's Proposed Jury Instructions.
I don't yet have a copy of the district court's final jury instruction, but will post it as soon as it becomes available on PACER.
This is one of several post-Ruan acquittals that have come down in the last six months. In each of these cases the government's evidence was weak and the strengthened scienter requirement established in Ruan v. United States no doubt played a major role in facilitating the not guilty verdicts.
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Back in October, I noted that several legal questions remained open in the wake of the Supreme Court's historic consolidated decision in Ruan v. United States and Kahn v. United States. I wrote that one such question was whether the government must prove that a physician-Defendant had no legitimate medical purpose for his/her prescription and that he/she was operating outside the usual course of his/her medical practice or whether it only need prove one of these two factors. It appears that I was wrong on that score. I'm aware of only one district court jury instruction in the post-Ruan world that allows the government to meet its burden by proving "no legitimate medical purpose" or "operating outside the course/scope of a medical practice." The issue was of paramount importance pre-Ruan, because several circuits had long held that the "outside the course/scope" prong was based on an objective standard of what a reasonable practitioner was required to do, irrespective of intent. If the government only had to prove one of two prongs, "no legitimate medical purpose" or "outside the course/scope," and one of those two prongs did not require proof of intent, it placed defendants at an enormous disadvantage and allowed the government to secure convictions without proving scienter. Those days are gone now, since the Court made it crystal clear that the Constitution requires the government to prove knowledge or intent on the part of the doctor that he or she was prescribing/dispensing drugs in an unauthorized manner. The formulation being most often used, taken from a passage in Ruan/Kahn which parroted the appropriate federal regulation, is that a health care professional acts in an authorized manner when he or she acts in the "usual course of professional practice for a legitimate medical purpose." Juries are not being told, except in one case, that proof of either/or will suffice. And that case resulted in an acquittal. Of course there is ample time for one of the circuits to screw things up.
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What is particularly galling about the offense instructions given to the jury in United States v. Spayd, a case tried in the United States District Court for the District of Alaska in October 2022, is not merely that the judge equated the terms "legitimate medical purpose" and "usual course of medical practice" with "a standard of medical practice generally recognized and accepted in the country." It is that he did so in violation of clear 9th Circuit precedent. The Ninth Circuit has long held that a physician defendant cannot be convicted of unlawful distribution merely by showing that he or she intentionally violated a standard of care or intentionally committed malpractice. The case was United States v. Feingold, 494 F.3d 1001 (9th Cir. 2006), in which the court stated that, "our holding is consistent with the law in several of our sister circuits, which have emphasized that the standard for criminal liability under §841(a) requires more than proof of a doctor's intentional failure to adhere to the standard of care." I will have more to say on this issue in future posts. Attached below are the full jury instructions and the separate offense instructions in Spayd.
Jessica Spayd Jury Instructions Jessica Spayd Offense Instructions
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Last June, in the consolidated cases of Ruan v. United States and Kahn v. United States, the U.S. Supreme Court considered the mens rea required to convict a physician charged with illegal distribution of narcotics under the Controlled Substances Act. The Court held that: "After a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so." A health care professional acts in an authorized manner under statute's controlling regulation when he or she acts in the "usual course of professional practice for a legitimate medical purpose." The vote was 9-0 on the need to reverse the judgments of the 11th Circuit (in Ruan) and the 10th Circuit (in Kahn), because both courts "evaluated the jury instructions under an incorrect understanding of [Title 18 U.S. Code] §841's scienter requirements," but the vote was 6-3 on the majority's specific holding. Justice Alito, joined by Justice Thomas and, far the most part, Justice Barrett, concurred in the result only. They did not join the majority's holding that, once the defendant meets the burden of producing any evidence that he or she was authorized to write prescriptions, the burden of proving beyond a reasonable doubt that the defendant intended to act, or knew he or she was acting, "in an unauthorized manner" falls on the government. But all nine Justices agreed that at least a portion of the jury instructions in each trial were defective because they injected objective reasonableness requirements into their good faith definitions. The Court sent the cases back to their respective circuits to determine, under the correct scienter requirements, whether: 1) the offense instructions as a whole were correct as a matter of law, and 2) whether any error in the instructions was harmless.
The supplemental briefs and replies have now been filed in each case, and are attached below. In Ruan, the harmless error analysis is complicated by the defendant's conviction on counts other than illegal distribution. In Kahn, a key focus of the government and defense briefs is the difference, if any, between knowingly or intentionally acting in an unauthorized manner (that is, outside the usual course of professional practice without a legitimate medical purpose) and knowingly or intentionally acting outside or beneath the relevant standard of care. The government maintains that there is no difference between the two concepts, which is an extremely doubtful position in light of the language and reasoning of both the majority and concurring opinions. This issue is really the elephant in the room in the post-Ruan/Kahn world. The Supreme Court originally granted certiorari to resolve a circuit split, but a split still exists, because some circuit courts have long approved instructions equating standard of care with authorized practice, while others have held that an intentional violation of the standard of care is not the same as acting with no legitimate medical purpose outside the scope of a medical practice. Attached below are the briefs on remand in Ruan and Kahn.
Shakeel Kahn's Supplemental Brief on Remand U.S. v. Shakeel Kahn-Government's Supplemental Brief on Remand U.S. v. Shakeel Kahn-Appellant's Supplemental Reply Brief Ruan Supplemental Brief on Remand Ruan and Couch Supplemental Brief of Appellee United States Ruan CA11 Supplemental Reply Brief on Remand (10.13 final)
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In a recent post, I briefly discussed the offense instruction in U.S. v. Romano–a post-Ruan illegal distribution case out of the Southern District of Ohio. I noted that the jury charge in Romano, "tied the concept of 'usual course of professional practice for a legitimate medical purpose' to a 'standard of medical practice generally recognized and accepted in the State of Ohio.'" I think this type of instruction, often used in the pre-Ruan era, should be considered improper in post-Ruan times. Although Ruan left many questions unsettled for now, the Supreme Court made it clear that no objective "reasonable physician" standard can constitutionally be superimposed onto the government's obligation to prove scienter beyond a reasonable doubt. Justice Breyer did say that criteria such as "legitimate medical medical purpose" and "usual course course of professional practice" were objective in nature and that the more unreasonable the defendant's beliefs and misunderstandings were, "especially as measured against objective criteria," the more likely it is that the jury will find that a defendant knew his conduct was unauthorized. But the Romano instruction risks having the jury equate "standard of care," a staple of civil malpractice cases, to "legitimate medical purpose" and "usual course of professional practice." Criminal defense practitioners in illegal distribution prosecutions of physicians and other medical professionals are all too familiar with government experts who are willing to testify that this or that particular practice or procedure by the defendant physician did not comport with a state or national standard of care. It is one thing to allow testimony of this type in order for the government to show how far a particular defendant deviated from the broad consensus of medical opinion and to further show how this deviation, in combination with other facts in the case, is circumstantial evidence of scienter. It is something different I believe to import this unexplained into the offense instruction. The Ninth Circuit has long held that a physician defendant cannot be convicted of unlawful distribution merely by showing that he or she intentionally violated a standard of care. The government must also show that he or she acted without a legitimate medical purpose. I realize that the distinctions being discussed here can be extremely subtle in nature, but that is exactly why they can lead to jury confusion. For this reason, I much prefer the U.S. v. Saloumeh Rahbarvafaei Offense Instruction which referenced standards of care, but did so in the following context: "There are no specific guidelines in the law defining what is the usual course of professional practice or defining a legitimate medical purpose. Therefore, in determining whether the defendant acted outside the usual course of professional practice, you may consider the standards to which medical professionals generally hold themselves, including standards of care among medical professionals. However, any finding of criminal liability must ultimately depend on the mental sate of the defendant herself, not what a hypothetical 'reasonable' medical practitioner would do or intend. Because of the need for the government to prove the defendant's criminal intent, this case is different from a medical malpractice case."
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Congratulations are in order for Licensed Physician's Assistant Saloumeh Rahbarvafaei and her defense attorneys, Federal Public Defenders Erin Murphy and Michael Driscoll, Jr. Rahbarvafaei was acquitted in late August on all eight charged counts of illegal distribution of a narcotic controlled substance. The case was out of the Central District of California. Michael Fitzgerald was the judge. This is the third total victory for a defendant health care professional that I am aware of since Ruan v. United States was handed down by the U.S. Supreme Court on June 27, 2022. Here is the U.S. v. Saloumeh Rahbarvafaei Offense Instruction on the elements of illegal distribution. It is the best one I have seen so far in the post-Ruan era. Keep in mind that 9th Circuit jury instructions in this area were already among the most defense friendly in the country. More to come on jury instruction permutations, post-Ruan, in future installments.
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Three recent post-Ruan cases, two resulting in acquittals and one in a guilty verdict, yielded three different offense instructions for illegal distribution of a controlled substance by a physician.
In United States v. Bothra, et al., which went to the jury on the morning that the consolidated cases of Ruan v. United States and Kahn v. United States (hereinafter Ruan) were handed down by the U.S. Supreme Court, the trial judge used a simple one page instruction, closely hewing to the bare bones holding of the Supreme Court. There was no good faith defense instruction (over defense objection) and no deliberate ignorance instruction. Here is the United States v. Bothra et al. Jury Instruction on Illegal Distribution. All Defendants were acquitted on all charges.
In United States v. Given, the trial court gave a lengthier and more traditional instruction, requested by the defense and agreed to by the government. The lone Defendant was acquitted on all counts. Although the Given jury instructions were obviously influenced by Ruan, the trial court surprisingly included some of the very language invalidated criticized and questioned by the U.S. Supreme Court in Ruan. Here is the U.S. v. Michael Given Offense Instructions. The trial court declined the government's request to give a deliberate ignorance instruction.
In United States v. Romano, the trial court tied the concept of "usual course of professional practice for a legitimate medical purpose" to a "standard of medical practice generally recognized and accepted in the State of Ohio." The court gave a deliberate ignorance instruction in tandem with a broad instruction on inferring intent. The Defendant was convicted on several counts. Here is the U.S. v. Romano Jury Instruction–Definition of the Crime. Here are the U.S. v. Romano Jury Instructions–Inferring Required Mental State and Deliberate Ignorance.
Clearly there will be quite a few kinks to work out in post-Ruan jury instructions until a coherent pattern emerges.
MattBray.net 